Bell v. State , 2017 Ark. LEXIS 198 ( 2017 )

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SUPREME COURT OF ARKANSAS.
No. CR-16-997
ALBERT D. BELL Opinion Delivered August 3, 2017
APPELLANT
PRO SE APPEAL FROM THE ARKANSAS
V. COUNTY CIRCUIT COURT,
NORTHERN DISTRICT, AND MOTION
STATE OF ARKANSAS FOR WRIT OF MANDAMUS TO FILE A
APPELLEE BELATED REPLY BRIEF
[NO. 01SCR-93-4]
HONORABLE DAVID G. HENRY,
JUDGE
AFFIRMED; MOTION MOOT.
KAREN R. BAKER, Associate Justice
Appellant Albert D. Bell brings this appeal from the denial of his pro se petition
under Arkansas Code Annotated section 16-90-111 (Repl. 2016). Bell did not claim in the
petition that the two sentences of life imprisonment that were imposed on him in 1994
were outside the statutory range for the offenses of which he was convicted. Rather, he
argued that the sentences were facially illegal under the Eighth Amendment because the
State did not prove in the sentencing proceeding in his case that he was incorrigible and
irreparably corrupt. He asserted further that the “evolving standards of a modern society”
no longer tolerated a life sentence for a juvenile, and thus, his sentences were cruel and
unusual and violated the Eighth Amendment. He also argued that (1) numerous witnesses
testified at the sentencing phase of his trial as to his character, “transient immaturity,” and
other mitigating factors, and the jury was unable to decide on a sentence, which left the trial
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court, rather than the jury as trier-of-fact, to impose the harshest sentence possible; (2) the
shooter in the case received only one life sentence while he received two consecutive life
sentences; (3) the shooter was eligible for relief under Montgomery v. Louisiana, 136 S. Ct.
718 (2016), which permitted retroactive application of Miller v. Alabama, 567 U.S 460
(2012), 1 to juvenile cases, but he was not; (4) the evidence was not sufficient to prove that
he was guilty of the offenses. Bell reiterates the issues raised in the petition in his brief in
this appeal and has also filed a motion seeking leave to file a belated reply brief in the appeal.
A trial court’s decision to deny relief under section 16-90-111 will not be overturned unless
it is clearly erroneous. The trial court’s decision in this matter were not clearly erroneous.
Accordingly, we affirm the order, and the petition to file a belated reply brief is moot.
I. Prior Proceedings
In 1997, this court affirmed Bell’s convictions for two counts of first-degree murder
and his sentence to two consecutive life sentences. 1 State v. Bell, 329 Ark. 422, 948 S.W.2d
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Miller prohibited a sentencing scheme that mandated life without the possibility of
parole for juvenile offenders in homicide cases. Because Bell was convicted of first-degree
murder, a life sentence was not mandatory, and the mitigating factor of his youth was
presented during the sentencing phase of his trial. Miller did not expressly hold that a life
sentence for a juvenile offender was unconstitutional but that the mitigating factor of youth
must be considered.
Prior to this decision, Bell had appealed from the trial court’s denial of his motion
seeking transfer to juvenile court, and this court affirmed the trial court’s order. Bell v. State,
317 Ark. 289, 877 S.W.2d 579 (1994). Bell was tried and subsequently appealed his
convictions and sentence. This court reversed and remanded in part for a new suppression
hearing. Bell v. State, 324 Ark. 258, 920 S.W.2d 821 (1996). On remand, the trial court
suppressed Bell’s statements, and the State appealed. This court reversed the trial court’s
order of suppression, held that a new trial was not warranted, and ordered the mandate
affirming Bell’s convictions and sentence be issued. Bell, 329 Ark. 422, 948 S.W.2d 557.
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557 (1997). Bell subsequently filed in the trial court a petition for postconviction relief
pursuant to Arkansas Rule of Criminal Procedure 37.1 (1994). The petition was denied,
and we affirmed. Bell v. State, CR-02-1071 (Ark. May 13, 2004) (unpublished per curiam).
In 2010, Bell filed in the trial court a petition for recall and for resentencing. Bell sought
resentencing by the trial court based on the decision of the United States Supreme Court in
Graham v. Florida, 560 U.S. 48 (2010), wherein the Court held that the Eighth Amendment
forbids a sentence of life imprisonment without parole for a juvenile offender who did not
commit homicide. The trial court denied his petition, and we affirmed the order. Bell v.
State, 2011 Ark. 379 (per curiam), cert. denied, 132 S. Ct. 1915 (2012).
II. Section 16-90-111
In 2015, Bell filed in the trial court a pro se petition to correct the sentence pursuant
to section 16-90-111 (Repl. 2013) contending that the sentence imposed on him was illegal
because he was a juvenile at the time the offenses were committed, and he, as an
accomplice, had not killed anyone himself and did not intend to kill anyone. The trial
court denied the petition on the grounds that it was an unauthorized second petition for
postconviction relief under Rule 37.2(b) and, even if considered on substantive Eighth
Amendment grounds, it did not state a basis for relief. We affirmed the order. Bell v. State,
2015 Ark. 370 (per curiam).
When we affirmed the order that denied Bell’s initial 2015 petition under section
16-90-111, we noted a sentence is illegal on its face when it exceeds the statutory maximum
for the offense for which the defendant was convicted. See Renshaw v. Norris, 337 Ark. 494,
989 S.W.2d 515 (1999); see also Green v. State, 2016 Ark. 386, 502 S.W.3d 524. Bell, who
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did not contend that the sentence imposed on him exceeded the statutory maximum, was
convicted of two Class Y felonies under Arkansas Code Annotated section 5-4-401(a)(1)
(1987), punishable by a term of imprisonment of not less than ten years nor more than forty
years, or life. Under Arkansas Code Annotated section 5-10-102(c) (Supp. 1991), first-
degree murder was a Class Y felony when the offenses were committed. Accordingly, the
life sentences imposed on Bell were within the range allowed by statute and were not facially
illegal. See Green, 2016 Ark. 386, 502 S.W.3d 524.
As to Bell’s contention in his 2016 petition that Graham applied to his case and
rendered him eligible for parole because he was merely an accomplice, this issue was
addressed by this court in Bell, 2011 Ark. 379. In that proceeding, Bell also argued that he
was entitled to resentencing under Graham because he was only an accomplice to first-
degree murder and, thus, did not commit a homicide offense. We noted in our opinion
that our case law makes clear that Bell was convicted of two homicides. Bell, 2011 Ark.
379, at 2. We have held that there is no distinction between principals on the one hand
and accomplices on the other insofar as criminal liability is concerned. Lawshea v. State,
2009 Ark. 600, 357 S.W.3d 901. When two people assist one another in the commission
of a crime, each is an accomplice and criminally liable for the conduct of both. Id. Because
Bell was convicted of a homicide offense, Graham was not applicable. Bell, 2011 Ark. 379,
at 3.
This court has already addressed Bell’s claims concerning his sentencing as a juvenile
to life imprisonment, and we need not reconsider the matter in this appeal. With respect
to the other allegations that Bell raised in his second petition, the claims were assertions of
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trial and constitutional error. A claim that a sentence is illegal presents an issue of subject-
matter jurisdiction that can be addressed at any time. See Walden v. State, 2014 Ark. 193,
433 S.W.3d 864. However, the claims, as advanced by Bell, did not allege an illegal sentence
of the type that is jurisdictional in nature; rather, the grounds for relief raised in Bell’s
petition were of the type that should have been raised in the trial court. See Cantrell v. State,
2009 Ark. 456, 343 S.W.3d 591.
Affirmed; motion moot.
Albert D. Bell, pro se appellant.
Leslie Rutledge, Att’y Gen., by: Vada Berger, Ass’t Att’y Gen., for appellee.
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